AMENDMENT NO. 15 TO RECEIVABLES PURCHASE AGREEMENT
AMENDMENT NO. 15 TO
RECEIVABLES PURCHASE AGREEMENT
This Amendment No. 15 to Receivables Purchase Agreement (this "Amendment") is entered into as of June 11, 2010 among Graybar Commerce Corporation, a Delaware corporation, as Seller ("Seller"), Graybar Electric Company, Inc., a New York corporation, as Servicer ("Servicer"), Falcon Asset Securitization Company LLC (formerly Falcon Asset Securitization Corporation) ("Conduit"), and JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA (Main Office Chicago)) ("JPMorgan")), as Agent and as a Financial Institution.
RECITALS
Each of Seller, Servicer, Conduit and JPMorgan entered into that certain Receivables Purchase Agreement, dated as of June 30, 2000, and each of the parties thereto amended such Receivables Purchase Agreement pursuant to the following amendments: (i) that certain Amendment No. 1 to Receivables Purchase Agreement, dated as of July 12, 2000, (ii) that certain Waiver and Amendment No. 2 to Receivables Purchase Agreement, dated as of January 1, 2001, (iii) that certain Amendment No. 3 to Receivables Purchase Agreement, dated as of June 22, 2001, (iv) that certain Amendment No. 4 to Receivables Purchase Agreement, dated as of August 29, 2001, (v) that certain Amendment No. 5 to Receivables Purchase Agreement, dated as of October 26, 2001, (vi) that certain Amendment No. 6 to Receivables Purchase Agreement, dated as of December 31, 2001, (vii) that certain Amendment No. 7 to Receivables Purchase Agreement, dated as of October 23, 2002, (viii) that certain Amendment No. 8 to Receivables Purchase Agreement, dated as of December 23, 2002, (ix) that certain Amendment No. 9 to Receivables Purchase Agreement, dated as of October 22, 2003, (x) that certain Amendment No. 10 to Receivables Purchase Agreement, dated as of September 26, 2005, (xi) that certain Amendment No. 11 to Receivables Purchase Agreement, dated as of August 15, 2006, (xii) that certain Amendment No. 12 to Receivables Purchase Agreement, dated as of October 13, 2006, (xiii) that certain Amendment No. 13 to Receivables Purchase Agreement, dated as of September 25, 2009 and (xiv) that certain Amendment No. 14 to Receivables Purchase Agreement, dated as of October 9, 2009 (such Receivables Purchase Agreement, as so amended, the "Purchase Agreement").
Each of the parties hereto now desires to amend the Purchase Agreement, subject to the terms and conditions hereof, as more particularly described herein.
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AGREEMENT
NOW, THEREFORE, in consideration of the premises, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Definitions Used Herein. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings set forth for such terms in, or incorporated by reference into, the Purchase Agreement.
Section 2. Amendments to the Purchase Agreement. Subject to the terms and conditions set forth herein, the Purchase Agreement is hereby amended by:
(a) replacing Section 7.1(j) of the Purchase Agreement in its entirety to read as follows:
"Collections. Such Seller Party will cause (1) all proceeds from all Lock-Boxes to be directly deposited by a Collection Bank into a Collection Account, (2) each Lock-Box and Collection Account to be subject at all times to a Collection Account Agreement that is in full force and effect and (3) all collections related to an Excluded Obligor shall be deposited into accounts separate from the Lock-Boxes and Collection Accounts. In the event any payments relating to Receivables are remitted directly to Seller, any Affiliate of a Seller Party or to Servicer, as agent for Seller, such Seller Party or Affiliate of a Seller Party will remit (or will cause all such payments to be remitted) directly to a Collection Bank and deposited into a Collection Account within two (2) Business Days following receipt thereof, and, at all times prior to such remittance, such Seller Party or Affiliate of a Seller Party will itself hold or, if applicable, will cause such payments to be held in trust for the exclusive benefit of the Agent and the Purchasers. Seller will maintain exclusive ownership, dominion and control (subject to the terms of this Agreement) of each Lock-Box and Collection Account and shall not grant the right to take dominion and control of any Lock-Box or Collection Account at a future time or upon the occurrence of a future event to any Person, except to the Agent as contemplated by this Agreement.";
(b) replacing the definition of "Receivable" in Exhibit I to the Purchase Agreement in its entirety as follows:
""Receivable" means all indebtedness and other obligations owed to Seller or Originator (at the time it arises, and before giving effect to any transfer or conveyance under the Receivables Sale Agreement or hereunder) or in which Seller or Originator has a security interest or other interest, including, without limitation, any indebtedness, obligation or interest constituting an account, chattel paper, instrument or general intangible, arising in connection with the sale of goods or the rendering of services by Originator, and further includes, without limitation, the obligation to pay any Finance Charges with respect thereto. Indebtedness and other rights and obligations arising from any one transaction, including, without limitation, indebtedness and other rights and obligations represented by an individual invoice, shall constitute a Receivable separate from a Receivable consisting of the indebtedness and other rights and obligations arising from any other transaction; provided, that any indebtedness, rights or obligations referred to in the immediately preceding sentence shall be a Receivable regardless of whether the account debtor or Seller treats such indebtedness, rights or obligations as a separate payment obligation. Notwithstanding the foregoing, "Receivable" shall not include indebtedness or other obligations owed to Originator by an Obligor arising on and after the date such Obligor is approved in writing by the Agent as an Excluded Obligor.";
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(c) adding a new definition of "Excluded Obligor" to Exhibit I to the Purchase Agreement which shall read as follows:
""Excluded Obligor" means an Obligor identified from time to time in a written schedule provided from the Servicer to the Agent and consented to in writing by the Agent. For convenience of the parties, such Excluded Obligors may be identified on Schedule C to this Agreement." and
(d) by adding a new Schedule C, entitled "Excluded Obligors", to the Purchase Agreement which shall read as follows:
"EXCLUDED OBLIGORS
▇▇▇▇▇▇▇▇▇▇▇-Siemens Electrical, LLC
58 ▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Siemens Industry, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Siemens Capital Company, LLC
▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Rolls-Royce Energy Systems, Inc.
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▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇".
Section 3. Conditions to Effectiveness of Amendment. This Amendment shall become effective as of the date hereof (the "Effective Date"), upon the satisfaction of the conditions precedent that:
(a) Amendment. The Agent and each Purchaser shall have received, on or before the date hereof, executed counterparts of this Amendment, duly executed by each of the parties hereto.
(b) Representations and Warranties. As of the Effective Date, both before and after giving effect to this Amendment, all of the representations and warranties contained in the Purchase Agreement and in each other Transaction Document shall be true and correct in all material respects as though made on the Effective Date (and by its execution hereof, each of Seller and Servicer shall be deemed to have represented and warranted such).
(c) No Amortization Event. As of the Effective Date, both before and after giving effect to this Amendment, no Amortization Event or Potential Amortization Event shall have occurred and be continuing (and by its execution hereof, each of Seller and Servicer shall be deemed to have represented and warranted such).
Section 4. Miscellaneous.
(a) Effect; Ratification. The amendments set forth herein are effective solely for the purposes set forth herein and shall be limited precisely as written, and shall not be deemed to (i) be a consent to, or an acknowledgment of, any amendment, waiver or modification of any other term or condition of the Purchase Agreement or of any other instrument or agreement referred to therein; or (ii) prejudice any right or remedy which any Purchaser or the Agent may now have or may have in the future under or in connection with the Purchase Agreement, as amended hereby, or any other instrument or agreement referred to therein. Each reference in the Purchase Agreement to "this Agreement," "herein," "hereof" and words of like import and each reference in the other Transaction Documents to the "Receivables Purchase Agreement" or to the "Purchase Agreement" shall mean the Purchase Agreement as amended hereby. This Amendment shall be construed in connection with and as part of the Purchase Agreement and all terms, conditions, representations, warranties, covenants and agreements set forth in the Purchase Agreement and each other instrument or agreement referred to therein, except as herein amended, are hereby ratified and confirmed and shall remain in full force and effect.
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(b) Transaction Documents. This Amendment is a Transaction Document executed pursuant to the Purchase Agreement and shall be construed, administered and applied in accordance with the terms and provisions thereof.
(c) Costs, Fees and Expenses. Seller agrees to reimburse the Agent and each Purchaser on demand for all costs, fees and expenses incurred in connection with the preparation, execution and delivery of this Amendment (including the reasonable fees and expenses of counsels to the Agent and/or the other Purchasers).
(d) Counterparts. This Amendment may be executed in any number of counterparts, each such counterpart constituting an original and all of which when taken together shall constitute one and the same instrument.
(e) Severability. Any provision contained in this Amendment which is held to be inoperative, unenforceable or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable or invalid without affecting the remaining provisions of this Amendment in that jurisdiction or the operation, enforceability or validity of such provision in any other jurisdiction.
(f) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS.
(g) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AMENDMENT, ANY DOCUMENT EXECUTED BY ANY SELLER PARTY PURSUANT TO THIS AMENDMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered by their respective duly authorized officers as of the date first written above.
GRAYBAR COMMERCE CORPORATION
By:
Name:
Title:
GRAYBAR ELECTRIC COMPANY, INC.,
as Servicer
By:
Name:
Title:
FALCON ASSET SECURITIZATION COMPANY LLC (formerly Falcon Asset Securitization Corporation)
By:
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
JPMORGAN CHASE BANK, N.A.
(successor by merger to Bank One, NA (Main Office Chicago)),
as Agent and as sole Financial Institution
By:
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
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